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Mitchell does not apply in Employment Tribunals

Charlotte Davies 

Since
the decision of the Court of Appeal in Mitchell
v News Group Newspapers Ltd
[2013]
EWCA Civ 1537, civil litigators have been all too aware of the stricter
approach being applied to breaches of orders and applications for relief from
sanction. In the recent case of Harris v
Academies Enterprise Trust & others
UKEAT/0097/14/KN, the Employment
Appeal Tribunal considered whether the Mitchell approach should extend to Employment Tribunals, or whether they retain some
procedural distinctions from the civil courts.

Background

Mr
Harris, a teacher, had brought a number claims against the Respondents, a
school and various individuals. He suffered from moderate to severe depression
and medical evidence suggested that this would be exacerbated by a delay to the
hearing of his claims.

On the
day witness statements were due to be exchanged (8 working days before the
hearing), the Respondents’ solicitor applied for an extension of time of a
week, which was refused. A week passed and the Respondents still had not
exchanged witness statements. Mr Harris then applied for an unless order, which
was also refused, although the Judge said she was considering striking out the
Response due to non-compliance with the order. At the start of the hearing, Mr
Harris made a strike-out application based on the failure to exchange
statements in compliance with the order.

That
application was refused by the Judge (albeit clearly reluctantly), on the basis
that although the Respondent had crossed the threshold to enable him to
consider striking out, the relative prejudice to the parties meant that on
balance it was not proportionate to do so. Mr Harris appealed against this
decision, in particular arguing that the Judge had erred in his approach
towards the overriding objective after Mitchell.

The EAT Judgment

In
considering the appeal on this ground, Mr Justice Langstaff accepted that the
determinative aspect of the Judge’s decision whether to strike out was his
approach to the overriding objective.

He noted
that the overriding objective in the Employment Tribunals (Constitution and
Rules of Procedure) Regulations 2013 (the “ET Rules”) is not in precisely the
same form as it is in the Civil Procedure Rules (“CPR”). In particular, unlike
the CPR, the ET Rules do not contain reference to the requirements that a case
is allotted an appropriate share of the court’s resources while taking into
account the need to allot resources to other cases, or of enforcing compliance
with rules, practice directions and orders.

Citing Governing Body of St Albans Girls’ School
& anor v Neary
[2010] ICR 473, Mr Justice Langstaff found that this
indicated a conscious decision by Parliament to adopt a different regime in the
Employment Tribunal than that in the civil courts, especially given that the ET
Rules have only recently been overhauled.

Therefore,
he said, it seemed to him that although there is much of principle that applies
to the overriding objective in both the ET Rules and the CPR, it would be a
mistake to suggest that the CPR apply in Employment Tribunals in the same way
as they apply in the civil courts.

There
were, however, clear indications in the EAT judgment that Mitchell is far from irrelevant to Employment Tribunals. Mr Justice
Langstaff had “no doubt” that regard must be had to the insight given by cases
such as Mitchell into that which
constitutes justice. Moreover, he expressly stated that Tribunal Judges are
entitled to take a stricter line than they may have taken previously, albeit
that this remains a matter to be assessed from within the existing ET Rules and
the principles in existing cases.

Conclusion

Whilst
employment lawyers may breathe a sigh of relief at the EAT’s decision that Employment
Tribunals are not required to apply the stringent provisions of the CPR, they
should not forget his warning that they are entitled to take a stricter line
than previously and to give regard to the “insight” given by Mitchell.

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